Why it matters: An employer was not required to engage in an interactive process prior to requesting a fitness-for-duty examination where the employee failed to request an accommodation, a California appellate panel has ruled, and the employee’s termination for failing to undergo the exam did not violate state law. A mathematics professor expressed angry, threatening behavior that frightened his colleagues. After an investigation, the professor was instructed to complete a fitness-for-duty (FFD) examination or be placed on a leave of absence. When he balked, he was initially placed on leave and then terminated. Alleging violations of the Fair Employment and Housing Act (FEHA), the professor sued. A jury returned a defense verdict for the school and the appellate panel affirmed, emphasizing that employers cannot be expected to initiate the interactive process when they have no knowledge of a disability. Sufficient evidence was presented that the exam itself was necessary to determine whether the professor posed a danger to others in the workplace, the court added, as the school had a duty to maintain a safe workplace for all employees.

Detailed Discussion

Dr. John Kao began teaching mathematics at the University of San Francisco (USF) in 1991 and attained a tenured position in 1997. On multiple occasions, Kao expressed concern about the lack of diversity among the math and computer science faculty and, in 2006, submitted a 485-page complaint to the school alleging race-based discrimination and harassment.

Kao met with other members of the faculty to discuss the issue and, according to those at the meeting, was “unable to control his emotions” and began “yelling and screaming.” One of the teachers present testified that he was “terrified” by Kao’s behavior. Over the next few months, other faculty members had similar experiences where Kao engaged in disturbing behavior, clenching his fists and reacting with rage when asked innocuous questions, throwing papers at meetings, and intentionally bumping into people in the hallway.

USF launched an investigation, reviewing the incidents and meeting with a clinical and forensic psychologist as well as a forensic psychiatrist, who opined that the only way to assess Kao’s ability to do his job in a safe way was to have an independent medical exam. The university informed Kao of the choice to undergo the FFD exam or be placed on leave.

He refused to take the exam and was placed on leave before eventually being terminated. Kao filed suit and the case was presented to a jury, which sided with the employer.

On appeal, Kao told the court that USF should have been required to engage in an interactive process before it could refer him for an FFD exam and the failure to do so violated FEHA.

Not necessarily, the panel wrote. A psychological examination by an employer-chosen doctor can be job-related and consistent with business necessity, even absent the interactive process.

“The requirement for an interactive process was not implicated here because Kao never acknowledged having a disability or sought any accommodation for one,” the court said. “Unless a disability is obvious, it is the employee’s burden to initiate the interactive process. Kao cannot plausibly claim it should have been obvious to USF that he was disabled because he never admitted any disability in the workplace. When a disability is not obvious, the employee must submit ‘reasonable medical documentation confirm[ing] [its] existence.’ Kao did nothing of the sort.”

USF presented “ample evidence from which to find that an FFD was necessary to determine whether he posed a danger to others in the workplace,” the panel wrote. “Multiple people reported multiple instances of threatening behavior on his part. USF’s decision to require him to have an FFD was based on expert advice, and USF presented unrefuted expert testimony that an FFD was appropriate under the circumstances.”

The court rejected Kao’s argument that USF had no “objective” evidence that he was dangerous because he did not explicitly threaten anyone. “These are at best jury arguments, and the jury could reasonably reject Kao’s benign view of the situation,” the court noted.

The panel also recognized the balance USF was required to strike between respecting Kao’s rights, on the one hand, and the duty to maintain a campus where people could safely work, on the other. “The jury heard testimony that Kao frightened school administrators and that his behavior cast a pall of ‘fear and confusion’ over the math department,” the court wrote. “The jury could reasonably find that it was vital to the university’s business to obtain an independent assessment of his fitness for duty.”

To read the opinion in Kao v. The University of San Francisco, click here.